ASHWINI KUMAR UPADHYAY versus UNION OF INDIA & ORS. on 27 February 2023

1. The reliefs sought for by the petitioner are as follows:

“a) direct the Home Ministry to constitute a “RenamingCommission” to find out original names of ‘ancient historicalcultural religious places’, named after barbaric foreign invadersin order to maintain Sovereignty and to secure ‘Right to Dignity,Right to Religion and Right to Culture’ guaranteed under Articles21, 25 and 29 of the Constitution; C

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b) alternatively, direct the Archaeological Survey of India toresearch and publish the initial names of ancient historical culturalreligious places, which were renamed by barbaric foreign invaders,in order to secure ‘Right to Know’ guaranteed under Article 19 ofthe Constitution; E

c) direct the Centre and State Governments to update theirwebsites and records and mention the original names of ancienthistorical cultural religious places, named after the barbaric foreigninvaders.”

2. We have heard Shri Ashwini Kumar Upadhyay, petitionerappearing in-person.

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3. In brief, the case of the petitioner appears to be as follows:

The country is celebrating the 75[th] Anniversary of Independencebut there are many ancient, historical, cultural, religious places inthe name of ‘brutal foreign invaders’, their servants and familymembers. He has given various examples. He invokes the rightto dignity as flowing from Article 21 of the Constitution of India.He further submits that there is his fundamental right to culturewhich is protected inArticles 19 and 29. Again, he refers to Article25 as the source of his right to religion and in regard to his G

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fundamental right to know, he leans on Article 19(1)(a). He alsohas brought up the concept of ‘sovereignty’ being compromisedby the continuous use of the names of the ‘brutal invaders’.

4. The petitioner, in fact, draws our attention to the followingquestions of law:

“1. Whether continuing the names of ancient historical culturalreligious places, in the names of barbaric invaders is against theSovereignty?

2. Whether Centre and States are obligated to restore the namesof ancient historical cultural religious places in their original namesto secure Right to Dignity guaranteed under Article 21 of theConstitution?

3. Whether the relief claimed for restoration of names of ancienthistorical cultural religious places, which were changed duringforeign rule, relates to Unity and Integrity of the Nation, thelaudable objective sought to be achieved in the Preamble of theConstitution of India?

4. Whether Right to profess, practice and propagate religion, isintimately connected with the names of religious places andtherefore the changes made during foreign rule must be restoredto enable the citizens to freely Profess, Practice and PropagateReligion guaranteed Article 25?

5. Whether the names of places prevalent during Ramayana andMahabharata Period were arbitrarily and illegally changed duringforeign rule, ought to be restored so as to protect the Right toConserve the Ancient Culture, guaranteed under Article 29 of theConstitution of India?

6. Whether restoration of the names of the ancient historicalcultural religious places, is connected with Right to Identityguaranteed under Article 21?

7. Whether Right to Know guaranteed under Article 19 includesthe right to know Original Names of the ancient historical culturalreligious places?”

5. We may notice that we have to bear in mind being the Courtdealing with the matter under Article 32 of the Constitution, that the A

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ACourt is tasked with the enforcement of fundamental rights. India, thatis ‘Bharat’ in terms of the preamble, is a secular country. InHis HolinessKesavananda Bharati Sripadagalvaru v. State of Kerala andAnother1, we notice that it was opined “India is a secular State in whichthere is no State religion” (See para 487). The secular and federalcharacter of the Constitution has found to be among the “basic elementsBof the constitutional structure” (See para 582). Secularism has beenaccepted by a Bench of nine learned Judges in the decision reported inS.R. Bommai and Others v. Union of India and Others2, as a facet ofthe basic structure of the Constitution. Therein, this Court, inter alia,declared:C“144....In such circumstances, the Ministries formed by the saidparty could not be trusted to follow the objective of secularismwhich was part of the basic structure of the Constitution and alsothe soul of the Constitution.

145. These contentions inevitably invite us to discuss the conceptDof secularism as accepted by our Constitution. Our Constitutiondoes not prohibit the practice of any religion either privately orpublicly. Through the Preamble of the Constitution, the people ofthis country have solemnly resolved to constitute this country,among others, into a secular republic and to secure to all its citizensE(i) JUSTICE, social, economic and political; (ii) LIBERTY ofthought, expression, belief, faith and worship; (iii) EQUALITYof status and of opportunity; and (iv) to promote among them allFRATERNITY assuring the dignity of the individual and the unityand integrity of the Nation. Article 25 of the Constitution guaranteesto all persons equally the freedom of conscience and the right toFfreely profess, practise and propagate religion subject to publicorder, morality and health and subject to the other FundamentalRights and the State’s power to make any law regulating orrestricting any economic, financial, political or other secular activitywhich may be associated with religious practice. Article 26Gguarantees every religious denomination or any section thereofthe right (a) to establish and maintain institutions for religious andcharitable purposes, (b) to manage its own affairs in matters ofreligion, (c) to own and acquire movable and immovable property 1 (1973) 4 SCC 225H2 (1994) 3 SCC 1

and (d) to administer such property in accordance with law. Article29 guarantees every section of the citizens its distinct culture,among others. Article 30 provides that all minorities based onreligion shall have the right to establish and administer educationalinstitutions of their choice. It prohibits the State from making anydiscrimination in granting aid to an educational institution managedby a religious minority. Under Articles 14, 15 and 16, theConstitution prohibits discrimination against any citizen on theground of his religion and guarantees equal protection of law andequal opportunity of public employment. Article 44 enjoins uponthe State to endeavour to secure to its citizens a uniform civilcode. Article 51-A casts a duty on every citizen of India, amongothers, (a) to abide by the Constitution and respect its ideals andinstitutions, (b) to promote harmony and the spirit of commonbrotherhood, among all the people of India, transcending, amongothers, religious and sectional diversities, (c) to value and preservethe rich heritage of our composite culture, (d) to develop scientifictemper, humanism and the spirit of inquiry and reform; and (e) tosafeguard public property and to abjure violence.

148. One thing which prominently emerges from the abovediscussion on secularism under our Constitution is that whateverthe attitude of the State towards the religions, religious sects anddenominations, religion cannot be mixed with any secular activityof the State. In fact, the encroachment of religion into secularactivities is strictly prohibited. This is evident from the provisionsof the Constitution to which we have made reference above. TheState’s tolerance of religion or religions does not make it either areligious or a theocratic State. When the State allows citizens topractise and profess their religions, it does not either explicitly orimplicitly allow them to introduce religion into non-religious andsecular activities of the State. The freedom and tolerance of religionis only to the extent of permitting pursuit of spiritual life which isdifferent from the secular life. The latter falls in the exclusivedomain of the affairs of the State. This is also clear from sub-section (3) of Section 123 of the Representation of the PeopleAct, 1951 which prohibits an appeal by a candidate or his agent orby any other person with the consent of the candidate or his electionagent to vote or refrain from voting for any person on the groundof his religion, race, caste, community or language or the use of or AB

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appeal to religious symbols. Sub-section (3-A) of the same sectionprohibits the promotion or attempt to promote feelings of enmityand hatred between different classes of the citizens of India onthe grounds of religion, race, caste, community or language by acandidate or his agent or any other person with the consent of thecandidate or his election agent for the furtherance of the prospectsof the election of that candidate or for prejudicially affecting theelection of any candidate. A breach of the provisions of the saidsub-sections (3) and (3-A) are deemed to be corrupt practiceswithin the meaning of the said section.

197. Rise of fundamentalism and communalisation of politics areanti-secularism. They encourage separatist and divisive forcesand become breeding grounds for national disintegration and failthe parliamentary democratic system and the Constitution. Judicialprocess must promote citizens’ active participation in electoralprocess uninfluenced by any corrupt practice to exercise theirfree and fair franchise. Correct interpretation in proper perspectivewould be in the defence of the democracy and to maintain thedemocratic process on an even keel even in the face of possiblefriction, it is but the duty of the court to interpret the Constitutionto bring the political parties within the purview of constitutionalparameters for accountability and to abide by the Constitution,the laws for their strict adherence.

304....How are the constitutional promises of social justice, libertyof belief, faith or worship and equality of status and of opportunityto be attained unless the State eschews the religion, faith or beliefof a person from its consideration altogether while dealing withhim, his rights, his duties and his entitlements? Secularism is thusmore than a passive attitude of religious tolerance. It is apositive concept of equal treatment of all religions. This attitudeis described by some as one of neutrality towards religion or asone of benevolent neutrality.This may be a concept evolved bywestern liberal thought or it may be, as some say, an abiding faithwith the Indian people at all points of time. That is not material.What is material is that it is a constitutional goal and a basic featureof the Constitution as affirmed in KesavanandaBharati [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC225 : 1973 Supp SCR 1] and Indira N. Gandhi v. Raj Narain [1975 Supp SCC 1 : (1976) 2 SCR 347] . Any stepinconsistent with this constitutional policy is, in plain words,unconstitutional....”

(Emphasis supplied)

6. In State of Karnataka v. Praveen Bhai Thogadia (Dr.),3,this Court proclaimed:

“9. Our country is the world’s most heterogeneous society with arich heritage and our Constitution is committed to high ideas ofsocialism, secularism and the integrity of the nation. As is wellknown, several races have converged in this subcontinent andthey have carried with them their own cultures, languages, religionsand customs affording positive recognition to the noble and ideal—“”way of life unity in diversity. Though these diversities createdproblems in early days, they were mostly solved on the basis ofhuman approaches and harmonious reconciliation of differences,usefully and peacefully. That is how secularism has come to betreated as a part of fundamental law, and an unalienable segmentof the basic structure of the country’s political system.As notedin S.R. Bommai v. Union of India [(1994) 3 SCC 1] freedom ofreligion is granted to all persons of India. Therefore, from thepoint of view of the State, religion, faith or belief of a particularperson has no place and given no scope for imposition on individualcitizen. Unfortunately, of late, vested interests fanning religiousfundamentalism of all kinds vying with each other, are attemptingto subject the constitutional machineries of the State to great stressand strain with certain quaint ideas of religious priorities, to promotetheir own selfish ends, undeterred and unmindful of the disharmonyit may ultimately bring about and even undermine nationalintegration achieved with much difficulties and laudabledetermination of those strong-spirited savants of yesteryear.Religion cannot be mixed with secular activities of the State andfundamentalism of any kind cannot be permitted to masqueradeas political philosophies to the detriment of the larger interest ofsociety and basic requirement of a welfare State. Religion sansspiritual values may even be perilous and bring about chaos andanarchy all around. It is, therefore, imperative that if any individual ABCDEFG

Aor group of persons, by their action or caustic and inflammatoryspeech are bent upon sowing seeds of mutual hatred, and theirproposed activities are likely to create disharmony and disturb theequilibrium, sacrificing public peace and tranquillity, strong action,and more so preventive actions are essentially and vitally neededto be taken. Any speech or action which would result inBostracization of communal harmony would destroy all those highvalues which the Constitution aims at. Welfare of the people isthe ultimate goal of all laws, and State action and above all theConstitution. They have one common object, that is to promotethe well-being and larger interest of the society as a whole andCnot of any individual or particular groups carrying any brand names.It is inconceivable that there can be social well-being withoutcommunal harmony, love for each other and hatred for none. Thecore of religion based upon spiritual values, which the Vedas,Upanishads and Puranas were said to reveal to mankind seem tobe:”Love others, serve others, help ever, hurt never” and “sarvaeD”jana sukhino bhavantoo. One-upmanship in the name of religion,whichever it be or at whomsoever’s instance it be, would renderconstitutional designs countermanded and chaos, claiming its heavytoll on society and humanity as a whole, may be the inevitable evilconsequences, whereof.”

E(Emphasis Supplied)7. In M.P. Gopalakrishnan Nair v. State of Kerala4, this Courtdeclared:

“20. It is now well settled:

(i) The Constitution prohibits the establishment of a theocraticFState.

(ii) The State is not only prohibited to establish any religion of itsown but is also prohibited to identify itself with or favouring anyparticular religion.

(iii) The secularism under the Indian Constitution does not meanGconstitution of an atheist society but it merely means equal statusof all religions without any preference in favour of or discriminationagainst any one of them.”

8. We are of the view that the questions of law raised by petitionerdo not arise.H4 (2005) 11 SCC 45

9. The present and future of a country cannot remain a prisonerof the past. The governance of Bharat must conform to Rule of law,secularism, constitutionalism of which Article 14 stands out as theguarantee of both equality and fairness in the State’s action.

10. The founding fathers contemplated India to be a republic whichis not merely to be conflated to a body polity having an elected Presidentwhich is the conventional understanding. But it also involves ensuringrights to all sections of people based on it being a democracy. It isimportant that the country must move forward. For achieving the sublimegoals which are enshrined in Part IV – that is the Directive Principles,but bearing in mind the fundamental rights also guaranteed in Part III ofthe Constitution, which have been described as the two wheels of thechariot of the State, both of which are indispensable, for the smoothprogress of the nation, actions must be taken which bond all sections ofthe society together.

11. The history of any nation cannot haunt the future generationsof a nation to the point that succeeding generations become prisoners ofthe past. The golden principle of fraternity which again is enshrined inthe preamble is of the greatest importance and rightfully finds its placein the preamble as a constant reminder to all stakeholders that maintenanceof harmony between different sections alone will lead to the imbibing ofa true notion of nationhood bonding sections together for the greatergood of the nation and finally, establish a sovereign democraticrepublic.We must constantly remind ourselves that courts of law, asindeed every part of the ‘State’, must be guided by the sublime realisation,that Bharat is a secular nation committed to securing fundamental rightsto all sections as contemplated in the Constitution.

12. We are, therefore, of the view that the reliefs which havebeen sought for should not be granted by this Court acting as the guardianof fundamental rights of all under Article 32 of the Constitution of Indiaand bearing in mind the values which a Court must keep uppermost in itsmind - the preamble gives us clear light in this direction.

13. The writ petition is dismissed.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Writ petition dismissed.

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